Execution of Wills

Question 1

Will

Answer 1

formalities for disposition of property; codicil- supplement that modifies it; not opperative until death so the benny only has an expectancy interest

Question 2

Intent

Answer 2

Must be a present intent; parol evidence is admissible to show an instrument was not meant to have any effect

If unclear: 1) was there an intent to dipose of property; 2) was it intended to occur upon death; 3) was the instrument meant to accomplish this

Question 3

Conditional wills

Answer 3

operative only if a stated condition is satisfied

Parol evidence is not admissible to that a will was intended to be conditional

Question 4

Requirements of execution

Answer 4

1) signed by testator; two witnesses present at signing; witness sign in testator’s presence

Sometimes: testator has to sign at the end; publish will (declaring it as a will); witnesses sign in the presence of each other

Signing done in a single contemporaneous transaction

Watch in case a witness is a benny- could present problems. Usually still valid but the bequest to the interested witness may be void unless she is a supernumerary (member of organization) or would have taken a share if the will had not been probated

Question 5

Attestation Clause

Answer 5

The will has been executed- recites the elements of due execution and is prima facie evidence of those elements

Question 6

Self proving affidavit

Answer 6

recites all the elements of due execution were performed and is sworn by the testator and witnesses before a notary

Question 7

Holographic wills

Answer 7

entirely in the testator’s handwriting and has no attesting witnesses

Must contain testator’s signature (need not be at the end)

Recognized by UPC

Question 8

Attested will

Answer 8

An attested will must be in writing and the will should have at least two witnesses whom are not named in the will.

The attested will must also be signed by the individual writing the will, as well as dated. Anytime the will is changed, the signature and date must again be noted. When the will is originally written, the witnesses will also sign and date the will. Witnesses would again be present when changes are made to the will, although it does not necessarily have to be the same witnesses.

Question 9

Variations

Answer 9

Attested and changes- usually not given effect

But if holographic wills are allowed- valid

Question 10

Oral

Answer 10

Not recognized
If they are allowed it is only for personal property and if made by: 1) soldiers or sailors; 2) person during last sickness or in contemplation of death

Must be two witnesses

Question 11

Conflict of Law

Answer 11

Real property- where it is located
Personal- testator’s domicile at the time of death
Foreign- admissible if: jurisdiction; state where the will was executed; testator’s domicile at execution of will or at death